OP (WAKF) No. 8 of 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 ``` ``` OP (WAKF) NO. 8 OF 2024 ``` ``` AGAINST THE ORDER DATED 18.01.2024 IN I.A.NO.987 OF 2023 IN WOS NO.103 OF 2022 OF WAKF TRIBUNAL, KOZHIKODE ``` ``` PETITIONERS/RESPONDENTS 1 TO 9: ``` - **`1 AZEEZ @ ABDUL AZEEZ, AGED 70 YEARS S/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, AGED 70, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`2 AYISHA, AGED 68 YEARS, D/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`3 PATHUMMAKUTTY, AGED 66 YEARS, D/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`4 MUHAMMED @ MANU, AGED 64 YEARS, S/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`5 LAILA, AGED 62 YEARS, D/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`6 ALI, AGED 60 YEARS, S/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** 2 O.P.(Wakf)No.8 of 2024 - **`7 MAJEED, AGED 57 YEARS, S/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`8 KUNJIMOIDEEN, AGED 53 YEARS, S/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`9 ABDUL HAMEED, AGED 47 YEARS, S/O VALIYA PALATHINGAL MUHAMMED @ VAPPU, VALIYA PALATHINGAL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** ## **`BY ADVS.SRINATH GIRISH`** ``` P.JERIL BABU ``` ## **`RESPONDENTS/PETITIONERS & RESPONDENT NO.10:`** - **`1 HIMAYATHUL ISLAM SANGHAM REPRESENTED BY PRESIDENT K.P. HANEEFA, AGED 73, S/O KUNJI MUHAMMED @ KUTTI BAPPU HAJI, KALAPARAMBIL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`2 K.P. HANEEFA, AGED 73 YEARS, S/O KUNJI MUHAMMED @ KUTTI BAPPU HAJI, PRESIDENT, HIMAYATHUL ISLAM SANGHAM, KALAPARAMBIL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`3 ABDUL RAHMAN, AGED 55 YEARS, S/O KUNJI MOIDEEN, SECRETARY, HIMAYATHUL ISLAM SANGHAM, PONNACHETHIYIL HOUSE, P.O. MOORKANAD, MOORKANAD AMSOM DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679338`** - **`4 THE KERALA STATE WAQF BOARD, REPRESENTED BY CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, COCHIN, PIN - 682017`** ``` R1 BY ADV.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA(K/168/2003) ``` ``` R4 BY SRI JAMSHEED HAFIZ, SC, KERALA STATE WAKF BOARD ``` 3 O.P.(Wakf)No.8 of 2024 ``` THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 O.P.(Wakf)No.8 of 2024 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners are defendants 1 to 9 in W.O.S.No.103 of 2022 on the file of the Waqf Tribunal, Kozhikode, which is one filed by respondents 1 to 3 herein, invoking the provisions under Section 83(5) of the Waqf Act, 1995, seeking various reliefs. In that suit, the plaintiffs-respondents 1 to 3 herein, filed I.A.No.987 of 2023, an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, seeking an order to appoint an Advocate Commissioner to ascertain the matters enumerated in that application. The petitioners, who are defendants 1 to 9, filed a counter statement opposing the relief sought for in that application. On 18.01.2024, the Waqf Tribunal passed an order (Ext.P8) whereby I.A.No.987 of 2023 stands allowed. Ext.P8 order reads thus; “This petition filed under Order 26 Rule 9 and section 151 of Code of Civil Procedure to appoint an Advocate Commissioner. 2. Heard. Adv. Prabhakaran is appointed as Commissioner to inspect the property with survey assistance. Commissioner can seek help of Surveyor of his choice. He has to pay batta of Surveyor. Pay batta of Rs.5,000/- (Rupees five thousand only) directly to Advocate Commissioner as initial expense. Await commission report.” 2. Feeling aggrieved by Ext.P8 order, the petitioners are 5 O.P.(Wakf)No.8 of 2024 before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. On 01.03.2024, when this original petition came up for admission, the learned Standing Counsel for Kerala State Waqf Board took notice on admission for the 4[th] respondent. This Court issued notice on admission by special messenger to respondents 1 to 3, returnable by 07.03.2024. 4. Heard the learned counsel for the petitioners, the learned counsel for the 1[st] respondent and also the learned Standing Counsel for the State Waqf Board for the 4[th] respondent. Despite service of notice, none appears for respondents 2 and 3. 5. The issue that requires consideration in this original petition is as to whether any interference is warranted on Ext.P8 order dated 18.01.2024 of the Waqf Tribunal in I.A.No.987 of 2023 in W.O.S.No.103 of 2022, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 6 O.P.(Wakf)No.8 of 2024 7. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. ## 8. In **K.V.S. Ram v. Bangalore Metropolitan Transport** **Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 9. I.A.No.987 of 2023 is one filed by respondents 1 to 3- plaintiffs, invoking the provisions under Order XXVI Rule 9 of the 7 O.P.(Wakf)No.8 of 2024 Code seeking an order to appoint an Advocate Commissioner to ascertain the matters enumerated in that interlocutory application. 10. Chapter XIV of Kerala State Waqf Rules, 2019 deals with the proceedings before the Tribunal. As per Rule 114, the provisions of the Code of the Civil Procedure, Civil Rules of Practice and the Criminal Procedure Code shall apply to proceedings before the Tribunal. As per Rule 129, the judgments or orders of the Tribunal shall contain a concise statement of the facts of the case, the points for determination, the decision thereon and the reason for such decision. Every order of the Tribunal shall be in writing and shall be signed with date and its seal. 11. As already noticed hereinbefore, in Ext.P8 order the Waqf Tribunal has not stated any reason whatsoever, for appointing an Advocate Commissioner. 12. The learned counsel for the 1[st] respondent would submit that valid reasons have been stated in the affidavit filed in support of I.A.No.987 of 2023 for appointing an Advocate Commissioner, for ascertaining the matter enumerated in that interlocutory application. 13. The learned counsel for the petitioners-defendants 1 to 9 would point out that the defendants have raised various contentions in their counter statement against the appointment of 8 O.P.(Wakf)No.8 of 2024 an Advocate Commissioner. None of those contentions were dealt with in Ext.P8 order. 14. In **Breen v. Amalgamated Engineering Union [(1971) 1 All.E.R. 1148]** Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 15. In **Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court held that public orders publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 16. Following the principle laid down in **Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court has reiterated 9 O.P.(Wakf)No.8 of 2024 ## in **Mohinder Singh Gill v. Chief Election Commissioner,** **[(1978) 1 SCC 405]** that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 17. Following the principle laid down in the decisions referred to supra, the Apex Court in **Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364]** held that reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, speaking out. The ‘inscrutable face - of a sphinx’ is ordinarily incongruous with a judicial or quasi judicial 10 O.P.(Wakf)No.8 of 2024 performance. 18. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that Ext.P8 order, which does not disclose any reason whatsoever, allowing the application for appointment of an Advocate Commissioner, cannot be sustained in law. In the result, this original petition is allowed by setting aside Ext.P8 order dated 18.01.2024 and by directing the Waqf Tribunal, Kozhikode to pass a reasoned order in I.A.No.987 of 2023 in W.O.S.No.103 of 2022, after adverting to the legal and factual contentions raised by both sides, as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **G. GIRISH, JUDGE** AV/16/3 11 O.P.(Wakf)No.8 of 2024 ## **`APPENDIX OF OP (WAKF) 8/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 A TRUE COPY OF THE PLAINT DATED 18-09-2022 IN O.S 103/2022 BEFORE THE WAKF TRIBUNAL, KOZHIKODE Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT OF DEFENDANTS 1 TO 9 IN O.S 103/2022 BEFORE THE WAKF TRIBUNAL, KOZHIKODE Exhibit P3 A TRUE COPY OF THE AFFIDAVIT DATED 22-01-2023 IN SUPPORT OF THE PETITION TO APPOINT AN ADVOCATE COMMISSIONER IN O.S 103/2022 Exhibit P4 A TRUE COPY OF THE REPORT AND PLAN DATED 17- 05-2023 SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A NO.44/2023 IN O.S 103/2022 BEFORE THE WAKF TRIBUNAL, KOZHIKODE Exhibit P5 A TRUE COPY OF THE PROOF AFFIDAVIT DATED 12- 09-2023 SUBMITTED IN O.S 103/2022 BEFORE THE WAKF TRIBUNAL, KOZHIKODE Exhibit P6 A TRUE COPY OF THE AFFIDAVIT DATED 20-12-2023 IN IA. 987/2023 IN O.S 103/2022 BEFORE THE WAKF TRIBUNAL, KOZHIKODE Exhibit P7 A TRUE COPY OF THE COUNTER STATEMENT IN I.A 987/2023 IN O.S 103/2022 BEFORE THE WAKF TRIBUNAL, KOZHIKODE Exhibit P8 A TRUE COPY OF THE ORDER DATED 18-01-2024 IN I.A 987/2023 IN W.O.S NO.103/2022 BEFORE THE WAKF TRIBUNAL, KOZHIKODE ```